Last Revised: February 24, 2023
The following terms of service are terms of a legal agreement (the "Agreement") between you ("you", "your", or "user") and FloatMe, Corp. and its subsidiaries, affiliates, agents and assigns ("FloatMe", "we", "us", or "our") which sets forth the terms and conditions for your use of FloatMe's mobile application ("Mobile App") and FloatMe's website, floatme.com (the “Website”), as well as the products and services offered, operated and owned by FloatMe through the Mobile App or Website (collectively, the "Services"). The Services are owned and operated by FloatMe, and are being provided to you expressly subject to this Agreement. By accessing, browsing and/or using the Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations.
THIS AGREEMENT ALSO INCLUDES, AMONG OTHER THINGS, A BINDING ARBITRATION PROVISION THAT CONTAINS A CLASS ACTION WAIVER. PLEASE REFER TO SECTION 23 BELOW FOR MORE INFORMATION.
1. ACCEPTANCE OF AGREEMENT
Please carefully review this Agreement before using the Mobile App, Website or Services, or accessing any data thereon. If you do not agree to these terms, you may not access or use the Mobile App, Website or Services. To use the Mobile App, Website or Services and to accept the Agreement, you must (1) be a citizen or permanent legal resident of the United States, (2) be at least 18 years old, (3) agree to only have one FloatMe User Account (defined below), which must be in your real name; (4) link a valid debit card issued by a United States financial institution; and (5) not be prohibited by law from using the Mobile App, Website or Services. Creating a FloatMe User Account with false information, which includes creating an account using another person’s information, is a violation of our terms and will result in the termination of your access to the Services.
2. MODIFICATION OF THIS AGREEMENT
FloatMe reserves the right to amend this Agreement at any time without advance notice unless required by law by posting a revised Agreement on our Website. All changes will be effective upon posting, so you should check this Agreement on the Website periodically for changes. Your continued use of the Mobile App, Website or Services after any change to this Agreement constitutes your agreement to be bound by any such changes. FloatMe also reserves the right to terminate, suspend, change, or restrict the Services, or any part of the Services, without notice or liability.
4. MINIMUM TECHNOLOGY REQUIREMENTS TO ACCESS SERVICES
To access and use the Mobile App and Services, you must have a mobile telephone (“mobile device”) with access to the Internet running either Apple iOS 10.3 or higher, or Android 5.0 or higher. You must also have a valid U.S. telephone number provided through a mobile carrier and email address, and sufficient storage space to install the Mobile App. We do not support devices that are not mobile telephones, such as tablets, or the use of emulators that purport to allow you to install mobile telephone applications on your laptop or desktop computer. The Mobile App is available on the Apple App Store (for Apple devices) and Google Play Store (for Android devices).
5. USER INFORMATION ACCURACY AND UPDATES
To access FloatMe's Services, you must create a Mobile App user account with FloatMe (a “FloatMe User Account”). This process will include the creation of a username and password (“Login Credentials”) to access the Mobile App and Services. When you sign up for a FloatMe User Account, you agree to provide accurate, current and complete information — such as your name, mailing address, phone number, and email address – requested through the Mobile App ("User Information").
In order to use certain Services, FloatMe may be required to verify your identity. You authorize us to make any inquiries we consider necessary to validate your identity. If you do not respond to such inquiries or we cannot verify your identity, we can refuse to allow you to use the Mobile App and/or the Services. Should any of your User Information change, you also agree that you will update this information as soon as possible. You may update your User Information through the Mobile App or by emailing us at firstname.lastname@example.org. Should you believe or have reason to believe that any of your User Information, including your username and/or password, has been compromised, or that another person is accessing your FloatMe User Account through some other means, you agree to notify us as soon as possible at email@example.com.
6. OVERVIEW OF SERVICES
FloatMe offers a variety of Services and features which include:
7. THIRD-PARTY AND FLOATME BANKING ACCOUNT INFORMATION
To use some of our Services, you will need to give us access to information related to your bank and credit accounts at other financial institutions. This includes bank and credit account transaction histories, balance information, and/or other information maintained by third-parties, including Bank in connection with the FloatMe MVP Card, with which you have relationships, maintain accounts or engage in financial transactions ("Third-Party Account Information"). FloatMe works with one or more third-party service providers to access this Third-Party Account Information. We will use this information to provide you with the Services you request, for our own internal business purposes, and to offer you other FloatMe or third-party products and services that may be of interest to you. By using the Services, you authorize FloatMe to access this information maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. By agreeing to this Agreement, you are also agreeing that you are responsible for keeping secure any passwords and usernames you provide to us so we can retrieve this Third-Party Account Information, and for keeping those passwords and usernames up to date through the Mobile App.
FloatMe does not review the Third-Party Account Information for accuracy, legality or non-infringement, and FloatMe is not responsible for your Third-Party Account Information or products and services offered by or on third-party sites. You acknowledge that any Third-Party Account Information that is displayed through the Services will be the information we most recently accessed, and that this information may not reflect pending transactions or other recent activity.
8. LINKED ACCOUNTS, BANK CONNECTION FEES AND CANCELLATION
After you create a FloatMe User Account, you will be prompted to identify and connect one or more of your bank accounts held at a depository institution (each a “Linked Account”) if you attempt to use or access any feature within the Mobile App that requires a Linked Account. There is a monthly fee of $1.99 for connecting Linked Accounts to your FloatMe User Account (“Connection Fee”). Once you connect one or more Linked Accounts, you will be assessed the Connection Fee each month until you disconnect all Linked Accounts through the Mobile App. You will only be assessed one Connection Fee per month regardless of the number of Linked Accounts you have.
To stop the monthly Connection Fee, you must close your FloatMe User Account. You may do so through the Mobile App or through our help portal at floatme.zendesk.com. It is important to remember that simply uninstalling the Mobile App from your device will not result in closure of your FloatMe User Account and will NOT stop the monthly Connection Fee.
After connecting a Linked Account, we will analyze your Linked Account to estimate the days you ordinarily receive your income (“Pay Dates”) based on your direct deposit history. The first Connection Fee will be assessed to your Linked Account on your first Pay Date after thirty (30) days have passed since the day you connected the Linked Account. You will then be assessed a Connection Fee on a Pay Date approximately every thirty (30) days thereafter. For example, if you connect a Linked Account on January 1st and we estimate that your Pay Dates are the 15th and 30th of each month, your first Connection Fee would be assessed on February 15th. We would then assess the fee each month that follows on the 15th.
You may only connect Linked Accounts that you own and are authorized to transact upon. Each Linked Account may only be connected to one FloatMe User Account. If we determine that you have connected a Linked Account that you do not own or are not authorized to transact upon, or that is already connected to another FloatMe User Account, we may terminate your access to the Services.
You may choose to unlink a Linked Account from your FloatMe User Account through the Mobile App. By unlinking your Linked Account from your FloatMe User Account, you may lose your ability to receive some or all of the Services.
FloatMe will attempt to avoid debiting your Linked Account for the Connection Fee if we detect that you have insufficient funds in your Linked Account to cover the amount owed. Additionally, we will not debit your Linked Account if we are unable to view the current balance of your Linked Account prior to initiating the payment. Although we will attempt to avoid debiting your Linked Account if you do not have sufficient funds, FloatMe makes no warranties that an overdraft will not occur or that your bank will not charge you fees. FloatMe also reserves the right to collect unpaid Connection Fees from prior months along with the fee due for the current month.
9. PFM SERVICES
If you maintain a FloatMe User Account and connect a Linked Account, you will have access to the PFM Services. Through the PFM Services, we may present you with information about your Linked Accounts and transactions to help you better understand and monitor your finances.
Through the PFM Services, you can also learn about and access offers from our third-party partners that may be of interest to you. In all cases, you will need to “opt in” to receive these partner offers, and FloatMe may receive compensation from these partners for connecting you with them. FloatMe is not responsible for the products and services offered by those partners.
10. THE FLOAT SERVICE
10.1 What is a Float?
If you are eligible, the Float Service allows you to receive advances of funds (each, a “Float”) to your Linked Account to help you cover upcoming expenses or avoid having insufficient funds in your Linked Account for a transaction. Once you accept a Float we offer you, the funds will be deposited into your Linked Account. You may only receive one Float at a time. We will not offer you additional Floats if you have not fully repaid a prior Float.
If we detect that your account balance in your Linked Account is below a certain threshold or that you may be at risk of overdrawing, we may also alert you via SMS messages or email and invite you to request a Float. FloatMe is not responsible for, nor assumes any liability for errors or omissions in sending such alerts. You may also request a Float at any time through the Mobile App. Eligible users requesting a Float will then be offered the opportunity to receive a Float to their Linked Account. In all cases, you must affirmatively choose to receive a Float.
10.2 Your Eligibility for Floats To be eligible to receive floats:
We determine the amount of any Float that you are eligible for based on, among other things, your anticipated income, transaction history, and information about your Linked Accounts and accounts. We may change our eligibility criteria at any time with or without notice to you.
10.3 Float Delivery and “Instant” Floats
When you request or accept a Float, you will be given the option to receive your Float by either an Automated Clearing House (“ACH”) transfer or as an “Instant” Float through your debit card. ACH transfers will generally appear in your Linked Account between one (1) to three (3) business days. We do not charge a fee for ACH transfers. We provide “Instant” Floats delivered to you through your debit card for a fee of $4.00 fee and will usually be credited to your Linked Account within eight (8) hours. If you choose to receive an “Instant” Float, the $4.00 fee will be payable at the time you repay the Float.
Note that the timeframes described above are only estimates. Once we send a Float to your Linked Account, we do not control when your bank will make it available to you.
10.4 Float Repayment
Each Float is repayable in one installment. Each time you accept a Float, you will be required to choose or confirm the date you will repay the Float (the “Repayment Date”). If the calculated Repayment Date falls on a weekend or a holiday, we may adjust your Repayment date to the next business day.
By accepting a Float, you authorize us to debit your Linked Account on the Repayment Date through the debit card you provide to us. If we are unable to process your repayment as a debit card transaction, you agree that we may instead process your transaction as an ACH transfer. You will not be eligible for a Float until processing of the repayment of any prior Float has been completed. You may also repay a Float at any time by authorizing a payment through the Mobile App.
If the payment you have authorized is (i) returned by your financial institution, (ii) if we decline to process your repayment because we have determined you do not have sufficient funds in your Linked Account, or (iii) we are otherwise unable to process your repayment on the Repayment Date, we will reattempt your repayment up to two (2) additional times on subsequent dates.
We warrant that we have no legal or contractual claim against you based on a failure to repay a Float. With respect to a failure to repay a Float, we warrant that we will not engage in any debt collection activities, place the amount owed with or sell to a third party, or report you to a consumer reporting agency. However, we will not provide you further Floats or access to certain PFM Services while any amounts owed for Floats remain unpaid.
FloatMe does not waive any rights regarding fraudulent or illegal activity, and FloatMe may pursue instances of fraud. Although Floats are intended to help you avoid overdrafts to your Linked Account and related overdraft fees that may be charged to you by your bank, we are not responsible for any overdraft fees, over-the-limit fees, insufficient fund charges, or any other bank fees that result from your failure to maintain a sufficient balance in your Linked Account. FloatMe monitors your balance and will attempt to avoid debiting your Linked Account if you do not have sufficient funds, but we make no warranties that an overdraft will not occur or that your bank will not charge you fees.
11. FLOATME MVP MEMBERSHIP
You may elect to become a member of our MVP Program. You must have a Linked Account (see Section 8) to be eligible for the MVP Program. MVP membership gives you access to an enhanced version of our PFM Services that includes additional features and tools, such as ongoing monitoring of your Linked Account to predict when you might experience a budgeting shortfall and alert you to the possibility of a future overdraft. Becoming a member of our MVP program also provides you exclusive access to additional products and services. The Connection fee is waived for all MVP members.
We charge a $4.99 monthly membership fee for the MVP Program. You have the option to either pay the membership fee on a monthly basis or annually (12 months) as a lump sum. You will be prompted to pay the first month’s fee if paying monthly or the 12-month lump sum if paying annually using a debit card through the Mobile App upon enrollment. You will be presented with options within the Mobile App for paying subsequent membership fees on a recurring basis using your Linked Account or, if applicable, your FloatMe MVP Card (see Section 12). Your membership will automatically renew every month if paying monthly or every year if paying annually until you cancel your membership.
If you choose to pay your membership fees monthly and after paying the first month’s fee through the Mobile App, we will debit the membership fee from your FloatMe MVP Card or Linked Account starting on your first Pay Date after thirty (30) days have passed since the day you enrolled in the MVP Program. You will then be assessed the membership fee on a Pay Day approximately every thirty (30) days thereafter. If you elect to pay your membership fees annually, we will debit 12 months' of fees as a lump sum every year on the anniversary date of your enrollment.
You may cancel your MVP membership at any time through the Mobile App or by closing your FloatMe User Account as described in Section 8. If you cancel your MVP membership without closing your FloatMe User Account, you will be charged the monthly Connection Fee as described in Section 8 instead of the MVP membership fee.
12. FLOATME MVP CARDS
If you are a member of our MVP Program (see Section 11), you may be eligible to apply for the FloatMe MVP Card, a secured charge card issued by Evolve and subject to the terms and conditions of the Secured Account and Charge Card Account Agreement you have entered into with Evolve.
Evolve is not responsible or liable for the FloatMe Services or the MVP Program or any services provided to you thereunder even if the FloatMe Services are financial in nature and seem related to the bank services.
The FloatMe MVP Card is only available to MVP Program members.
Connection Fees, fees related to “Instant” Floats, and MVP membership fees are non-refundable.
14. PAYMENT AUTHORIZATIONS
For Non-MVP Program Members. By connecting a bank account to your FloatMe User Account, you authorize us to electronically debit the $1.99 monthly Bank Connection Fee from your Linked Account on a monthly basis or 12 months of fees on an annual basis according to the instructions you provide us through the Mobile App. If paying monthly, your Bank Connection Fee will be processed on one of your Pay Dates as described in Section 8 until you close your FloatMe User Account. Note that if your calculated Pay Date falls on a non-business day, we will debit the Bank Connection Fee on the next business day. If we are unable to process your payment or if your payment is returned by your bank, we will attempt to collect the fee the following month along with the fee for that month.
If paying annually, your Linked Account will be debited each year on the anniversary date of your enrollment. You will select your Linked Account to be debited at the time you connect your bank account to FloatMe through the Mobile App.
For MVP Program Members. By enrolling in the MVP Program, you authorize us to electronically debit the $4.99 membership fee from your Linked Account or FloatMe MVP Card on a monthly basis or 12 months of fees on an annual basis according to the instructions you provide us through the Mobile App. If paying monthly, your membership fee will be processed on one of your Pay Dates as described in Section 11 until you cancel your MVP Program membership. Note that if your calculated Pay Date falls on a non-business day, we will debit the membership fee on the next business day. If we are unable to process your payment or if your payment is returned by your bank, we will attempt to collect the fee the following month along with the fee for that month.
If paying annually, your FloatMe MVP Card or Linked Account will be debited each year on the anniversary date of your enrollment.
For All Users. As applicable, you also authorize FloatMe to electronically debit and credit your Linked Account and/or FloatMe MVP Card to correct erroneous debits and credit. You acknowledge that, as applicable, the electronic authorizations contained in this Section represents your written authorization for ACH and/or debit card transactions as provided herein and will remain in full force and effect until you notify FloatMe that you wish to revoke an authorization by emailing firstname.lastname@example.org.
If using a Linked Account to make payments to us, you warrant and represent to FloatMe that you have the right to authorize us to charge and credit your Linked Account. In no event will our liability to you exceed the amount of the transaction. If you have a joint Linked Account, you represent and warrant that you have the authority to (a) bind the absent accountholder and (b) enter into this Agreement independently. You agree to indemnify and hold FloatMe harmless from any claims by any other owner of the Linked Account.
You represent that you are capable of saving or otherwise storing a copy of these terms for your records, and the credit and debit transactions you request comply with applicable law.
15. REVOKING PAYMENT AUTHORIZATIONS
You may cancel any payment authorization you provide to us under this Agreement by notifying FloatMe at least three (3) business days before the scheduled debit date of the payment. When you email, please include the name, email address, and telephone number associated with your FloatMe User Account. Failure to provide correct and complete information may make it impossible for FloatMe to stop the transaction. You agree to indemnify and hold FloatMe harmless from and against any loss incurred as a result of its withdrawal of an ACH, debit card or credit card transaction from your Linked Account or FloatMe MVP Card if any of the information relied upon in your request to revoke authorization is incorrect or incomplete. If you have followed the instructions in this Section to notify FloatMe of your desire to revoke your authorization at least three (3) business days before the scheduled debit date and we fail to stop the transaction, we will be liable for your losses or damages directly caused by our failure. If we do not receive notice at least three (3) business days before the scheduled debit date, we may attempt, in our sole discretion, to cancel the transaction. However, we assume no responsibility for our failure to do so.
16. CONSENT TO ELECTRONIC COMMUNICATIONS AND DOING BUSINESS ELECTRONICALLY
16.1 Communications to Be Provided in Electronic Form
By choosing to use the Mobile App or Services, you will receive from time-to-time disclosures, notices, documents, and any other communications about our Services, the Mobile App, or FloatMe (“Communications”). We can only give you the benefits of our Services by conducting business through the Internet, and therefore we need you to consent to receive all Communications electronically. This section informs you of your rights when receiving electronic Communications from us. We may discontinue electronic provision of Communications at any time in our sole discretion.
16.2 Communications in Writing
By accepting this Agreement, you agree that electronic Communications shall be considered “in writing” and have the same meaning and effect as if provided in paper form, unless you have withdrawn your consent to receive Communications electronically as stated below. You agree that we have no obligation to provide you Communications in paper format, although we reserve the right to do so at any time.
16.3 Minimum Requirements
You understand that, in order to view and/or retain copies of the electronic Communications, you will need to meet the minimum technology requirements described in Section 4 above, as well as have software that allows you to open and view PDF files, such as the Adobe Acrobat Reader. You will also need sufficient storage space to save Communications or the capability to print the Communications from the device on which you view them.
16.4 Withdrawing Consent
You may withdraw your consent to receive Communications electronically by contacting us at email@example.com. If you withdraw your consent, we will close your FloatMe User Account and, if applicable, end your subscription to the PFM Services. The legal validity and enforceability of prior Communications delivered in electronic form will not be affected by your withdrawal of consent. You also agree to pay any outstanding Bank Connection Fees you may have incurred prior to the termination of your FloatMe User Account.
16.5 Updating Records
You can update your User Information in the Mobile App or by emailing us at firstname.lastname@example.org.
17. SMS MESSAGING AND TELEPHONE CALLS
By creating a FloatMe User Account, you consent to receive SMS and MMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, with service-related information such as alerts, or questions about your use of the Services and/or Mobile App. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else's. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. FloatMe and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means. Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice without liability to you.
By creating a FloatMe User Account, you also agree to receive push notifications from us. Receipt of push notifications may be delayed or prevented by factors beyond our control, including those affecting your internet/phone provider. We are not liable for losses or damages arising from non-delivery, delayed delivery, or the erroneous delivery of any push notification; inaccurate push notification content; or your use or reliance on the content of any push notification for any purposes. Each push notification may not be encrypted, and may include your name and information pertaining to your use of the Website, Mobile App, or Services. We may terminate your use of push notifications at any time without notice. You can opt out of receiving push notifications by adjusting your device settings. You acknowledge that opting out of receiving push notifications from us may impact your use of the Website, Mobile App, and Services.
18. LIMITATIONS OF USE
You agree to use the Mobile App, Website and Services only for lawful purposes. You are prohibited from any use of the Services or Mobile App that would constitute a violation of any applicable law, regulation, rule or ordinance of any nationality, state, or locality or of any international law or treaty, or that could give rise to any civil or criminal liability. Any unauthorized use of the Mobile App or Services, including but not limited to unauthorized entry into FloatMe's systems, misuse of passwords, or misuse of any information posted on the Mobile App, Website or through the Services is strictly prohibited. FloatMe makes no claims concerning whether use of the Mobile App, Website or Services is appropriate outside of the United States. If you access the Mobile App, Website or Services from outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
You agree you will not (1) try to reverse engineer, disassemble, decompile, or decipher the Mobile App, Website or Services or software making up the Mobile App, Website and Services, (2) navigate or search the Mobile App, Website or Services with any tool, software, agent, engine or other means (including bots, avatars, intelligent agents, or spiders), (3) use a means other than FloatMe's provided interface to access the Mobile App, Website or Services, (4) use the Mobile App, Website or Services in a way that could impair, overburden, damage, or disable any portion of the Mobile App, Website or Services, or (5) mirror any material contained on the Mobile App, Website or Services.
FloatMe reserves the right to take various actions against you if we believe you have engaged in activities restricted by this Agreement or by laws or regulations, and FloatMe also reserves the right to take action to protect FloatMe, other users, and other third parties from any liability, fees, fines, or penalties. We make take actions including, but not limited to: (1) updating information you have provided to us so that it is accurate, (2) limiting or completely closing your access to the Mobile App, Website or Services, (3) suspending or terminating your ability to use the Mobile App, Website or Services on an ongoing basis, (4) taking legal action against you (note, as described in Section 10.4 FloatMe will not take action against you for failure to repay a Float), and (5) holding you liable for the amount of FloatMe's damages caused by your violation of this Agreement.
19. INTELLECTUAL PROPERTY RIGHTS
The Mobile App, Website and Services are owned and operated by FloatMe. All content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, text, data, contents, names, trade names, trademarks, trade dress, service marks, layout, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, interfaces, databases, technology, and all intellectual property of any kind whatsoever and the selection and arrangement thereof (collectively, the "FloatMe Materials") are owned exclusively by FloatMe or the licensors or suppliers of FloatMe and are protected by U.S. copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Nothing on this Website, Mobile App or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the FloatMe Materials displayed on the Mobile App, Website or Services, without our prior written permission in each instance. You may not use, copy, display, distribute, modify or reproduce any of FloatMe Materials found on the Mobile App, Website or Services unless in accordance with written authorization by us. FloatMe prohibits use of any of the FloatMe Materials as part of a link to or from the Mobile App, Website or Services unless establishment of such a link is approved in writing by us in advance. Any questions concerning any FloatMe Materials, or whether any mark or logo is a FloatMe Material, should be referred to FloatMe. All rights related to the FloatMe Materials are hereby reserved. You agree that the FloatMe Materials may not be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the express prior written consent of FloatMe. You acknowledge that the FloatMe Materials are and shall remain the property of FloatMe. You may not modify, participate in the sale or transfer of, or create derivative works based on any FloatMe Materials, in whole or in part.
FloatMe may terminate this Agreement at any time, or suspend or terminate your access and use of the Mobile App, Website or Services at any time, with or without cause, in FloatMe's absolute discretion and without notice. The following provisions of this Agreement shall survive termination of your use or access to the Mobile App, Website or Services: the sections concerning Indemnification, Disclaimer of Warranties, Limitation of Liability, Waiver, Dispute Resolution by Binding Arbitration, and General Provisions, and any other provision that by its terms survives termination of your use or access to the Mobile App, Website or Services. FloatMe further reserves the right to modify or discontinue, either temporarily or permanently, any portions or all of the Mobile App, Website or Services at any time with or without notice.
21. DISCLAIMER OF WARRANTIES
THE MOBILE APP, WEBSITE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, FLOATME AND ALL OF ITS SUCCESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, INVESTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ATTORNEYS AND THEIR RESPECTIVE HEIRS, SUCCESSORS, ASSIGNS, LICENSORS AND SUPPLIERS INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS (COLLECTIVELY, THE "FLOATME PARTIES") EXPRESSLY MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED AS TO THE CONTENT OR OPERATION OF THE MOBILE APP, WEBSITE OR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE MOBILE APP, WEBSITE OR SERVICES IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." THE FLOATME PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF ANY OF THE INFORMATION OR CONTENT ON THE MOBILE APP, WEBSITE, OR SERVICES, AND EXPRESSLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. THE FLOATME PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE MOBILE APP, WEBSITE OR SERVICES ARE FREE OF VIRUSES, BUGS, DEFECTS, ERRORS, OR OTHER COMPUTING ROUTINES THAT CONTAIN DAMAGING OR OTHERWISE CONTAMINATING PROPERTIES, OR PROGRAMS INTENDED TO INTERCEPT OR STEAL PERSONAL OR SYSTEM DATA.
Please note, the ability to exclude warranties varies in different jurisdictions. To the extent that a jurisdiction places limits on the ability for a party to exclude warranties, these exclusions exist to the extent permitted by law. Because of this jurisdictional variance, some of the above exclusion may not apply to you.
22. NO LEGAL, TAX OR FINANCIAL ADVICE; ALERTS
FLOATME DOES NOT INTEND TO PROVIDE YOU WITH ANY LEGAL, TAX, OR FINANCIAL ADVICE THROUGH THE MOBILE APP, WEBSITE OR SERVICES. FLOATME IS NOT A LAWYER, TAX ADVISOR, BROKER, OR FINANCIAL PLANNER. FLOATME ENCOURAGES YOU TO CONSIDER CONSULTING AN ACCOUNTANT OR OTHER FINANCIAL ADVISOR AWARE OF YOUR INDIVIDUAL CIRCUMSTANCES BEFORE IMPLEMENTING ANY FINANCIAL STRATEGY OR MAKING OTHER FINANCIAL DECISION. FLOATME WILL MAKE REASONABLE EFFORTS TO PROVIDE TIMELY AND ACCURATE ALERTS TO YOU, BUT YOU ACKNOWLEDGE AND UNDERSTAND THAT ALERTS MAY BE DELAYED OR PREVENTED FOR VARIOUS REASONS. FLOATME DOES NOT GUARANTEE THE DELIVERY, ACCURACY, OR TIMELINESS OF ALERTS. FURTHER, FLOATME IS NOT LIABLE FOR ANY ERRORS IN THE DELIVERY OR CONTENT OF AN ALERT, AND FLOATME IS NOT LIABLE FOR ACTIONS YOU TAKE, OR DO NOT TAKE, IN RELIANCE ON ALERTS. FLOATME IS NOT LIABLE FOR ANY THIRD-PARTY RELIANCE ON ALERTS.
23. LIMITATION OF LIABILITY
THE FLOATME PARTIES WILL NOT BE RESPONSIBLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED, OR PUNITIVE DAMAGES, INCLUDING DAMAGES UNDER WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER CLAIMS, ARISING OUT OF OR RELATING TO YOUR USE OF THE MOBILE APP, WEBSITE OR SERVICES, THE FLOATME MATERIALS, OR ANY CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE MOBILE APP, WEBSITE OR SERVICES, EVEN IF FLOATME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FLOATME PARTIES WILL ALSO NOT BE LIABLE TO YOU FOR ANY USE OF INFORMATION, DATA, OR OTHER MATERIAL TRANSMITTED VIA THE MOBILE APP, WEBSITE OR SERVICES, OR FOR ANY ERRORS, DEFECTS, INTERRUPTIONS, DELETIONS, OR LOSSES RESULTING FROM, INCLUDING LOSS OF PROFIT, REVENUE, OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO, OR USE OF, THE MOBILE APP, WEBSITE OR SERVICES. IN NO EVENT WILL THE FLOATME PARTIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED USD $1,000 (ONE THOUSAND UNITED STATES DOLLARS). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE MOBILE APP, WEBSITE OR SERVICES OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless the FloatMe Parties from and against any and all claims, losses, expenses, demands or liabilities, including reasonable attorneys' fees arising out of or relating to (i) your access to, use of or alleged use of the Mobile App, Website or Services; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You shall cooperate as fully as reasonably required in the defense of any such claim. FloatMe reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You agree not to settle any matter without the prior written consent of FloatMe.
26. DISPUTE RESOLUTION BY BINDING ARBITRATION
YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 23.3 BELOW.
26.1 Election to Arbitrate
You and FloatMe agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 23 (the "Arbitration Provision"), unless you opt out as provided in Section 23.3 below. As used in this Arbitration Provision, "Claim" shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent provided otherwise in the last sentence of Section 23.8 below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise.
Please note that you may continue to assert Claims in small claims court, if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
26.2 Applicability of the Federal Arbitration Act; Arbitrator's Powers
This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (the "FAA"). The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
26.3 Opt-Out of Arbitration Provision
You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to email@example.com, within 60 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send an opt-out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf.
26.4 Informal Dispute Resolution
If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you may submit Claims by sending an email to firstname.lastname@example.org at any time.
26.5 Arbitration Procedures
The party initiating arbitration shall do so with the American Arbitration Association (the "AAA") or Judicial Alternatives and Mediation Services ("JAMS"). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA's web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. The arbitration will be held in the United States county where you live or work, or any other location we agree to.
26.6 Arbitration Fees
If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. We shall pay the administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request that we pay them and we agree to do so. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator's rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act ("FAA"), and may be entered as a judgment in any court of competent jurisdiction.
26.8 No Class Actions
NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Except for claims seeking public injunctive relief and unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 23.8, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 23.8 shall be determined exclusively by a court and not by the administrator or any arbitrator.
26.9 Survival and Severability of Arbitration Provision
This Arbitration Provision shall survive the termination of this Agreement. If any portion of this Arbitration Provision other than Section 23.8 is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If there is a final judicial determination that applicable law precludes enforcement of this Arbitration Provision's limitations as to a particular claim for relief or particular term, then that claim (and only that claim) or that term (and only that term) must be severed from the Arbitration Provision and may be brought in court. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 23.8 are finally adjudicated pursuant to the last sentence of Section 23.8 to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.
26.10 Judicial Forum for Claims
Except as otherwise required by applicable law, in the event that this Arbitration Provision is found not to apply to you or your Claim, you and FloatMe agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Bexar County, Texas. Both you and FloatMe consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
26.11 WAIVER OF RIGHT TO LITIGATE.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
27. GOVERNING LAW AND VENUE
Except for Section 23 which is governed by the FAA, this Agreement and all Claims are governed by the laws of the State of Texas, without regard to conflict-of-law rules.
If any provision of this Agreement is found to be invalid, unlawful, void, or unenforceable by either an arbitrator or a court of competent jurisdiction, this Agreement's remaining provisions shall be enforced to the fullest extent possible, and the remaining provisions of the Agreement shall remain in full force and effect.
You agree that if FloatMe does not enforce any of its legal rights or remedies under this Agreement, or other legal rights or remedies FloatMe has under applicable laws, this shall not be construed as a formal waiver of those rights or remedies or any other rights in any way whatsoever.
30. MOBILE APP AVAILABILITY
We shall have the right, in our sole discretion and with reasonable notice, to establish or change limits concerning use of the Mobile App features, temporarily or permanently, including but not limited to the number of times and the maximum duration for which you may access the Mobile App in a given period of time. We reserve the right to make any such changes effective immediately to maintain the stability or security of the system or to comply with any laws or regulations. You may reject changes by discontinuing use of the Mobile App features to which such changes relate. Your continued use of the Mobile App will constitute your acceptance of and agreement with such changes. Maintenance upon the Mobile App may be performed from time-to-time resulting in interrupted service, delays or errors in the App features. Attempts to provide prior notice of scheduled maintenance will be made, but FloatMe cannot guarantee that such notice will be provided.
31. LINKS TO OTHER WEBSITES AND SERVICES
The Mobile App and our website may contain links to outside services and resources, the availability and content of which FloatMe does not control or monitor. We are not responsible for examining or evaluating, and we cannot guarantee and expressly do not warrant the offerings of these businesses or individuals or the content of their web sites. Except where an endorsement or relationship is expressly disclosed, links to and from such sites do not constitute a FloatMe endorsement, and FloatMe does not represent or imply that there is any business relationship between FloatMe and the other entities. FloatMe does not assume any responsibility or liability for the actions, products, and content of these and any other third-parties. Any concerns regarding any such service or resource, or any link thereto, should be directed to the particular outside service or resource.
32. CONTACTING US
If you have questions regarding the Agreement or the practices of FloatMe, please contact us by e-mail at email@example.com. You may also contact us by calling 1-830-484-6104 or by writing us at FloatMe, Corp., ATTN: Customer Inqry, to 110 E Houston St. 7th Floor, San Antonio, TX 78205.
33. GENERAL PROVISIONS